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CASE NO.: Appeal (civil) 3426-28  of  1995

PETITIONER: THE STATE OF WEST BENGAL & ANR.

       Vs.

RESPONDENT: M/S. BANALATA INVESTMENT PVT. LTD. & ANR.

DATE OF JUDGMENT:       30/04/2001

BENCH: D.P. Mohapatra & Umesh C. Banerjee

JUDGMENT:

BANERJEE,J. L...I...T.......T.......T.......T.......T.......T.......T..J     The  State  of  West  Bengal is in  appeal  against  the Judgment  and  Order of the Calcutta High Court recording  a finding    that    the    dispossession    of    the    Writ Petitioner/Respondents  herein  on  19th   March,  1991  was arbitrary  and  without  process  of law.   The  High  Court further  directed  in its Order that the  State  authorities will  not  in  any way disturb the possession  of  the  Writ Petitioners  without taking recourse to the provision of the West Bengal (Public Land Eviction of Unauthorized occupants) Act  1962  or  such other provision as may be  available  to them.

   The  contextual  facts depict that the Writ  Petitioners were  in  possession of three out houses in  premises  No.62 Syed  Amir  Ali  Avenue,  Calcutta.  The  High  Court  while dealing with the facts came to the conclusion, however, that possessory  right  ought not to prevent the vesting  of  the entire  property in the State Government and thus came to  a finding that the entire premises No.62, Syed Amir Ali Avenue Calcutta came to be vested on to the State Government on and from  5th December, 1983.  The High Courts finding on  this score  remains un-challenged as such we need not delve  into its factual acceptability.

   On  the  further factual score, the High Court  observed that  whether the Writ Petitioners/respondents herein can at all  be said to be tenants in respect of the premises  under their  occupation under heirs of S.K.  Ghose, since diseased or under V.C.  Sood as claimed by the Writ Petitioners could not  be of any concern of the Court in the appeal before it, but  as  consequence of the State Governments acquiring  of title  to  the  premises, continued occupation  without  the sanction  of the later was unauthorised.  This aspect of the factual finding also has not been challenged as such we need not dilate on this score as well.

   The  High  Court however, even though as  noticed  above came  to the conclusion that the above noted entire premises came  to  vest  in  the State Government  on  and  from  5th

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December,  1983, but recorded a finding that taking recourse to  the  provisions of the West Bengal  Government  Premises Tenancy  Regulation Act, 1976, for the purpose of  obtaining possession  of the premises in question does not and can not arise.   The High Court as a matter of fact observed that it is no bodys case that the Writ Petitioners were inducted as tenants by and on behalf of the State Government and as such the provisions of 1976 Act can not be said to be extended to the  petitioners  who claimed to be the tenants not  of  the State  Government, but of the owners of the property and  it is  on the wake of the aforesaid finding that the High Court denounced invocation of the powers under Section 6(A) of the 1976  Act and directed not to disturb the possession of  the Writ  Petitioners  in the premises in question.  It  may  be noticed  herein  that the above noted directions  concerning non-disturbance  however  was subject to taking recourse  to the  provisions  of  West Bengal Public  Land  (Eviction  of un-authorised  Occupants)  Act,  1962 or  such  other  legal possession  as may be available to them.  In short thus, the High  Courts  finding  is to the effect  that  whereas  the provisions  of  1976  Act cannot be made applicable  in  the facts  and  the  matter under consideration, but  leave  was granted to take recourse to the Act of 1962.

   Before  proceeding further, be it noted that Government premises  stands defined in the Act of 1976 as meaning  any premises,  which  is  owned by the State  Government  or  by Government undertaking, but does not include.

   Whereas,  Section  3 of the Act of 1976 deals  with  the termination  of tenancy, section 4 provides for  restoration of possession.  This statute provides in section 4 that upon termination  of  tenancy  under  any of  the  provisions  of Section  3,  the  tenant has to  restore  vacant  possession forthwith  of the premises occupied by him in favour of  the prescribed  authority, but in the event, the tenant fails to restore  the  possession  of the  premises,  the  prescribed authority  may take such step or steps or use such force  as may  necessary  to take possession of the premises  and  may also enter into such premises for the aforesaid purpose.

   Further,  the  statute  whereas in  Section  6  provides penalty  for  failure to deposit rent in time, Section  6(A) provides as below:-

   6A.  Eviction of unauthorised occupants and penalty for such  occupation.   Where  any  person not  being  a  tenant occupies,  or  remains  in  occupation,  of  any  Government premises  without  the  written   order  of  the  prescribed authority,-

   (a)  the prescribed authority, or any officer authorised by it in this behalf, may take such steps and use such force as  may be necessary to take possession of the premises  and may also enter into the premises for the said purpose;  and

   (b)  such  person shall be punishable with  imprisonment for  a  term  which may extend to six months, or  with  fine which may extend to one thousand rupees, or with both.

   Incidentally, authorisation to Act in terms of provision of  1962 Act obviously finds place in the judgment itself by reasons  factum  of the respondents tenancy being  declared unauthorised  and to appreciate the same, a look at the 1962 Statute  would  be  convenient.  The Act of  1962  has  been

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introduced in the statute book to provide speedy eviction of unauthorised  occupants  from  public lands,  which  however includes  buildings  and  other  things  attached.   Similar however,  is  the provision for issuance of notice  and  the statutory  sanction in terms of section 4 provides  eviction of  the  persons in unauthorised occupation on public  land. The  High Court obviously preferred earlier statute to apply in the contextual facts, rather than later statute, but that can  not however be accepted as fair reading of the law  and the fact-situation of the matter in issue.  In this context, section  12 of the Act of 1976 ought to be noticed.  Section 12 provides:-

   12.  Act to override other laws.  (1) The provisions of this   Act  shall  have   effect  notwithstanding   anything contained  in any other law for the time being in force,  or in  any  contract, express or implied, or in any  custom  or usage to the contrary.

   (2)   In  particular  and   without  prejudice  to   the generality  of  the fore-going provisions, the  West  Bengal Public  Land  (Eviction of Unauthorised Occupants) Act  1962 shall  not  be applicable to any premises to which this  Act applies.

   The overriding effect of the Act thus can not be whisked away  as adumbrated above.  Needless to record here that the principal section 12 stands re-numbered as sub-section 1 and sub-section  2  has been inserted by West Bengal Act  30  of 1985.  Statutory intent thus stand clarified that the Act of 1962  shall not be applicable to the government premises  to which the Act of 1976 applies.  The definition of Government premises within the meaning of Section 2(A) as noticed above is  rather of widest possible amplitude.  The discussions in the  impugned  judgment do not show that it was the case  of any  of  the  parties that the building in question  is  not Government  premises  as defined in the Act of  1976.   In sub-section  (2)  of Section 12 the legislature has  clearly laid  down  that the Act of 1962 shall not be applicable  to any  premises to which this Act (Act of 1976) applies.   The conclusion  therefore is inescapable that any proceeding for eviction  of  unauthorised  occupants  of  the  premises  in question  has  to be initiated only under the Act  of  1976. The  judgment  of  the High Court is in  conflict  with  the express  statutory provision in Section 12 (2) of the Act of 1976.   Therefore,  the High Court clearly erred in  holding that   the  proceeding  under  the   Act  of  1976  was  not maintainable  and that proceeding for eviction, if any,  may be taken under the Act of 1962.  In any event, by reasons of specific  finding  of the High Court as to whether the  Writ Petitioner  can  at all be said to be tenants in respect  of the premises under the heirs of S.K.  Ghose or V.C.  Sood is not  the  concern of the Appellate Bench, the finding or  at least   the   recording  of   observation  about   the   non applicability of the Act of 1976 does not and can not arise. In our view the High Court is clearly in error having regard to  the finding as recorded therein in the judgment impugned before  this Court.  In any event, the effect of Section  12 of  the  Act  of 1976 has not been noticed at  all  and  the interpretation  offered and the meaning imputed to the words used  in the 1976 legislation, in our view has been  totally mis-placed.

   On  the  wake of the aforesaid, we are unable to  record our concurrence with the judgment under appeal.@@

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               JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ

   Considering,  however  the duration of occupation  being for  quite a number of years, we deem it fit in the interest of  justice  to allow the respondents herein to  vacate  the premises by 31st October, 2001.  It is placed on record that this order is passed without however any prayer for the same being  made  by the respondents.  The extension of  time  is granted  in terms of this order, however shall be subject to filing  of the usual undertaking before this Court within  a period of four weeks in default of which the appellant would be  at  liberty to take steps in accordance with  law.   The appeals  are  thus allowed.  The judgment of the High  Court thus stands set aside.  Parties to bear their costs.